The petitioner's suit for the possession of land through pre-emption, fully detailed in the heading of the plaint, was decreed in his favour by the trial Court (Mr. Khalil Khan Khalil, Senior Civil Judge, Tank) on payment of Rs.6,630 vide its judgment, dated 11-4-1994.
2. The respondents then challenged its validity before the District Judge. The District Judge, Tank (Mr. Abdul Sattar Khan), by his order, dated 2-11-1995, accepted the appeal and rejected the plaint on the ground that the suit of the petitioner was barred by time under section 31 of the N.-W.F.P.
Pre--emption Act, 1987.
3. The petitioner assailed the findings of the District Judge before this Court in Revision Petition No.11 of 1996 (Sanaullah Khan v. Hassan Khan). The revision petition was accepted by an Honourable Judge of this Court i.e., his Lordship Mr. Justice Sardar Muhammad Raza, vide his Lordship's order, dated 18-11-1996. The case was remanded to the lower appellate Court with the directions to give its findings on all the points involved in the case including that of limitation as well as the superior pre-emptive right. The parties were directed to appear before the District Judge on 24-11-1996.
4. The learned counsel for the parties were accordingly heard by the District Judge (Mr. Muhammad Salim Khan Minakhel) who by his order, dated 25-11-1996 set aside the judgment and decree of the trial Court and dismissed the suit of the petitioner leaving the parties to bear their own costs. Hence this petition.
5. In the abovementioned background it would be appropriate if the operative portion of the judgment of the lower appellate Court is reproduced here: ----- "(4)In his plaint the plaintiff has alleged that no notice of sale was given to him. When he learnt about the sale in question, he at once made Talb-e---Muwathibat and then sent written notices to the vendees. In his plaint the plaintiff has not disclosed the date, the time and the place, when he had received the information of sale in dispute. He has also not disclosed the name of the person in his plaint, who had informed him about the sale in question. Similarly, the names of those persons are also not mentioned in his plaint, in whose presence he had made Talb-e--- Muwathibat. In the lower Court the plaintiff Sanaullah appeared as P.W.5 and stated that on 16-12- 1991 he had gone to Gul Imam to see the Patwari and to obtain some documents regarding his landed property, where he got the knowledge about the transaction of the disputed property. In the cross-examination, he has stated that at the time when he got the knowledge of the suit transaction from Patwari in village Gul Imam, on one else was present with the Patwart Halqa. The statement of the plaintiff shows that it was the Patwari Halqa of Gul Imam, who had informed him about the sale in question and he then, according to him, had at once made Talb-e-Muwathibat.
The plaintiff has not produced Patwari of village Gul Imam, in whose presence he had made Talb- e-Muwathibat. Though he has produced Bashir Ahmad, Patwari Halqa Tajori as P W.1, but this witness has not stated anything about Talb-e-Muwathibat. The statement of the plaintiff shows that at first instance, he had made Talb-e-Muwathibat in presence of Patwari Halqa Gul Imam and after that he had returned to his village and had once again, made Talb-e-Muwathibat. According to law, the plaintiff was bound to prove that as soon as the Patwari of village Gul Imam informed him about the sale of the suit property, he at once made Talb--e-Muwathibat, but he has failed to prove it. The notices, according to admission of the plaintiff, were scribed in Court premises in absence of witnesses. The signature and thumb-impressions of the witnesses on the notices were obtained in the village. Exh.P.W.2/1 is the attested copy of suit sale mutation, which shows that on 5- 12-1991 the plaintiff Sanaullah had applied for the supply of attested copy of suit sale Mutation No.437. The attested copy of the said mutation was given to him on 7-12-1991. It means that on 5- 12-1991 the plaintiff was having, the knowledge of the sale of the suit property, but he, according to his own statement, had made Talb-e-Muwathibat on 16-12-1991. It proves that he has not made Talb-e-Muwathibat on 5-12-1991 or on 7-12-1991, but has made the same on 16-12-1991. Though the attested copy of suit sale Mutation No.437 was handed over to him on 7-12-1991, but he, according to statement of Munir Ahmad P.W.3, has sent the notices to the vendees on 22-12-1991. He has not made Talb-e---Muwathibat in time, nor has sent the notices to the vendees within the prescribed time.
(5) The suit of the plaintiff is not within time. The impugned Mutation No.437 was attested on 24-9- 1991, while the suit was instituted on 26-1-1992. Section 31 of the Pre-emption Act, 1987 prescribes period of limitation of 120 days for filing of such-like suits, but the plaintiff has not instituted the suit within the statutory period as laid down in the amended law, therefore, his suit is time-barred. The lower Court had sent Naib-Tehsildar Settlement, Tank as Local Commissioner to inform the Court whether the plaintiff is owner, contiguous to the suit land or not. The Local Commissioner went to the spot and prepared the site plan, which proves that the plaintiff is the continuous owner. From the report of the Local Commissioner, it is proved that the plaintiff has got superior right of pre- emption, but as his suit is not within time and he has not made the Talbs in time according to law, therefore, he is not entitled to the decree for possession through pre-emption of the suit land.
(6) The result of the above discussion is that I accept the appeal, set aside the judgment and decree of the lower Court and dismissed the suit of the plaintiff. The parties are, however, left to bear their own costs."
5. I have gone through, the record of the case minutely, with the able assistance of the learned counsel for the parties, and am of the considered view that the District Judge has discussed the evidence produced by the parties in detail and has given valid reasons for his conclusion. The judgment of the District Judge does not suffer from any illegality or material irregularity. The same is neither perverse nor arbitrary. On the contrary it is a speaking order. In the circumstances, in my opinion, this revision petition is without any substance and is accordingly dismissed with costs.